Inchoate Crimes

MBEMax wiki article — paired with the Criminal Law question set on mbemax.com.

One-line summary

Three inchoate (incomplete) offenses punish preparatory conduct: attempt, solicitation, and conspiracy. Each has its own actus reus and mens rea, and each interacts with the target offense through merger rules that matter on the bar.

Mnemonic

A-S-C — Attempt, Solicitation, Conspiracy.

Remember merger with ASCS: Attempt and Solicitation merge into the completed crime (Complete = Swallow). Conspiracy does not merge — the C stands alone.

Attempt

Rule. Specific intent to commit the target crime + substantial step toward its commission (Model Penal Code) or dangerous proximity to completion (common law).

• Mens rea: specific intent (even if the target crime is general intent). Recklessness or negligence cannot suffice for attempt.
• Actus reus: more than mere preparation. MPC "substantial step strongly corroborative" is the modern majority.
• Impossibility. Factual impossibility is NOT a defense (pickpocketing an empty pocket). Legal impossibility (doing something you mistakenly thought was illegal but is not) IS a defense.
• Abandonment. Common law: no defense. MPC: voluntary and complete renunciation under circumstances showing no intent to return.
• Merger. Attempt merges into the completed crime.

Solicitation

Rule. Asking, urging, hiring, or inviting another to commit a crime with intent that it be committed.

• Mens rea: specific intent that the target offense be committed.
• Completion: offense complete when the request is communicated; acceptance by the solicited party is not required.
• Merger. Solicitation merges into attempt or the completed crime (and into conspiracy if the solicited party agrees).
• Defenses: renunciation, factual impossibility not a defense at common law; some states recognize withdrawal with counteraction.

Conspiracy

Rule. Agreement between two or more persons to commit an unlawful act (or a lawful act by unlawful means) with intent to agree and intent to pursue the unlawful objective. Most modern jurisdictions also require an overt act.

• Mens rea: specific intent. Both the intent to agree and the intent to achieve the objective are required.
• Agreement: express or tacit — unilateral agreement (only one participant truly intends) is sufficient under MPC and many modern statutes; common law required bilateral (two guilty minds).
• Overt act: any act in furtherance by any co-conspirator is enough. Not required at common law but required in federal law and most states.
• Scope — Pinkerton liability. Co-conspirator is liable for reasonably foreseeable crimes committed by co-conspirators in furtherance of the conspiracy. Some states reject Pinkerton.
• Wharton rule: if the underlying offense inherently requires two participants (adultery, bigamy, dueling, bribery), you cannot conspire with just those necessary parties (majority view). Statutory variants control.
• No merger. Conspiracy is a separate offense from the completed crime.
• Withdrawal: limits Pinkerton liability for future acts but does NOT excuse the conspiracy itself. Must communicate clearly and affirmatively. Some states recognize renunciation as complete defense if thwart the conspiracy.

NCBE loves to test

• Attempt mens rea trap. Defendant who throws a rock intending only to break a window but recklessly endangering lives cannot be convicted of "attempted murder" — lacks specific intent.
• Impossibility twist. D thinks marijuana is cocaine, sells oregano thinking it's marijuana — factual impossibility, attempt conviction stands.
• Solicitation plus agreement = conspiracy. The solicitation merges into conspiracy.
• Unilateral vs. bilateral conspiracy. Under the MPC, a defendant can conspire with an undercover officer (unilateral); under traditional common law, no.
• Pinkerton limits. Foreseeable-and-in-furtherance test; co-conspirator is not liable for wholly independent frolics.
• Wharton rule exception. Third-party conspirators can still be convicted even when the underlying crime requires two participants.
• Renunciation traps. Must be voluntary (not due to fear of capture). Must be complete. Under MPC, must thwart conspiracy for full withdrawal.

Fast hypos

Hypo 1. D plans to rob a bank and drives to the bank with a mask and gun but turns around because he realizes police are nearby. Attempt charge: substantial step taken (drove with tools); mens rea present. Abandonment due to fear of capture is involuntary — no MPC defense.

Hypo 2. D agrees over the phone with an undercover officer to buy drugs and bring them across state lines. MPC jurisdictions: conspiracy (unilateral). Common-law jurisdictions: no conspiracy because only one guilty mind.

Hypo 3. D solicits E to kill V. E agrees. E alone commits the murder. Both are charged with conspiracy and murder. D is also charged with solicitation. Solicitation merges into conspiracy (and the murder via Pinkerton in federal and majority states). Conspiracy does NOT merge with murder; D can be convicted of both.

Hypo 4. D fires at V through a window. D hits nothing because V was already dead. Factual impossibility — attempt conviction sustainable.

Case anchors

• Pinkerton v. United States, 328 U.S. 640 (1946) — co-conspirator liability doctrine.
• People v. Rizzo, 246 N.Y. 334 (1927) — dangerous-proximity test for attempt.
• Iannelli v. United States, 420 U.S. 770 (1975) — Wharton rule limited to parties necessarily involved.
• United States v. Recio, 537 U.S. 270 (2003) — conspiracy continues despite government impossibility; sentencing relevant.
• Direct Sales Co. v. United States, 319 U.S. 703 (1943) — intent to agree shown by repeated sales with knowledge of illegal use.

See also

• Homicide
• Theft
• Burglary
• Mens rea

Sources

Model Penal Code §§ 5.01, 5.02, 5.03; Pinkerton v. United States, 328 U.S. 640 (1946); People v. Rizzo, 246 N.Y. 334 (1927); Iannelli v. United States, 420 U.S. 770 (1975); United States v. Recio, 537 U.S. 270 (2003); Direct Sales Co. v. United States, 319 U.S. 703 (1943).